Porter v. Ray, No. 05-13923.

Citation461 F.3d 1315
Decision Date21 June 2006
Docket NumberNo. 05-13923.
PartiesNathaniel PORTER, Jr., Heather L. Williams, Pamela C. Frye, Demetrice L. Pennie, Alan Keith Walker, Mark S. Hudson, Stevie Harris, Thomas K. Veitch, Marcia Rose Wall, Beth Ellen Jackson, Christopher Scott Heftler, Nathan Fisher, Plaintiffs-Appellants, v. Walter S. RAY, Jr., Bobby K. Whitworth, James E. Donald, Commissioner, Ga DOC, Garfield Hammonds, Betty Ann Cook, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

McNeill Stokes, Atlanta, GA, for Plaintiffs-Appellants.

Jacqueline Faye Bunn, Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, and HILL and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Twelve appellants, either currently or formerly incarcerated in the State of Georgia, appeal the district court's grant of summary judgment in favor of eight former and current members of the Georgia Board of Pardons and Paroles ("Board") on the appellants' claims that the Board retroactively applied a secret parole policy that extended their sentences beyond what they likely would have served under the guidelines and statutes applicable at the time they committed their offenses. For the reasons that follow, we affirm.

I. Background

On December 9, 1997, the Board adopted a resolution amending its parole guidelines to provide that any offender convicted on or after January 1, 1998 for one or more of twenty enumerated offenses would be required to serve a minimum of 90% of the court-imposed term of incarceration before becoming eligible for an initial parole hearing before the Board ("90% policy").1 As of December 9, 1997, the Georgia General Assembly required all prisoners to serve a minimum of "one-third of the prison term imposed by the sentencing court" before becoming eligible for an initial parole hearing before the Board. O.C.G.A. § 42-9-45(f). Additionally, the Board required an officer in the Board's Hearing Examiner Unit for Parole Decision Guidelines to apply the Parole Decision Guidelines ("Guidelines"), to consider parole eligibility data, and to calculate a tentative parole month ("TPM") for each inmate, which the Board voted to accept or reject.2 The hearing officers could not submit a TPM to the Board without also considering the minimum parole eligibility requirements: (1) the one-third time served requirement under O.C.G.A. § 42-9-45(f); and (2) the 90% policy. The hearing examiners were instructed to recommend to the Board the lengthiest number of months-to-serve.

Prior to January 1, 1998, the hearing examiner's recommendation to the Board usually represented the greater of either: (1) the inmate's Guidelines score; or (2) one-third of the prison term imposed by the sentencing court. On and after January 1, 1998, the hearing examiner's recommendation to the Board as to an offender convicted of one or more of the twenty enumerated crimes usually represented the greater of either: (1) the inmate's Guidelines score; or (2) 90% of the inmate's court-imposed prison sentence.

At all relevant times, however, the Board retained the discretion to disagree with a recommendation under the Guidelines system and make an independent decision to deny parole or establish a TPM at any time prior to the expiration of the sentence. O.C.G.A. § 42-9-20 ("It shall be the duty of the board personally to study the cases of those inmates whom the board has power to consider so as to determine their ultimate fitness for such relief as the board has power to grant."); Ga. Comp. R. & Regs. 475-3-.05(5) ("The Board specifically reserves the right to exercise its discretion under Georgia Law to disagree with the recommendation resulting from application of the Parole Decision Guidelines and may make an independent decision to deny parole or establish a Tentative Parole Month at any time prior to sentence expiration."). Additionally, Georgia law states that "[n]o inmate shall be placed on parole until and unless the board shall find that there is reasonable probability that, if he is so released, he will live and conduct himself as a respectable and law-abiding person and that his release will be compatible with his own welfare and the welfare of society." O.C.G.A. § 42-9-42(c). We have recognized that the Board has "virtually unfettered discretion to deviate both above and below the Guidelines recommendation in setting the TPM." Jones v. Ga. State Bd. of Pardons & Paroles, 59 F.3d 1145, 1150 (11th Cir. 1995).

In May 2002, in a separate action, the United States District Court for the Northern District of Georgia ruled that the retroactive application of the 90% policy to those individuals who committed their crimes before January 1, 1998 violates the Ex Post Facto Clause of the United States Constitution. Jackson v. Ga. Bd. of Pardons & Paroles, Civ. No. 2:01-CV-068-WCO, 2002 WL 1609804 (N.D.Ga. May 30, 2002). The Board did not appeal this decision. On September 9, 2002, the Board adopted a resolution ("2002 Resolution") in which it agreed not to apply the 90% policy to individuals who committed their offenses before January 1, 1998 and granted new hearings to determine a revised TPM for those individuals to whom the Board had impermissibly applied the 90% policy. The Board stated that it would remove any reference to the 90% policy from the subject prisoners' parole files and would apply the parole regulations in effect at the time the individuals committed their offenses.

On September 29, 2003, Pamela Frye, Stevie Harris, Mark Hudson, Demetrice Pennie, Nathaniel Porter, Jr., Thomas Veitch, Alan Keith Walker, and Heather Williams, most of whom were convicted of one or more of the twenty enumerated offenses, initiated this action in the Northern District of Georgia against the members of the Board.3 After the Board answered, Nathan Fisher, Christopher Scott Heftler, Beth Ellen Jackson, and Marcia Rose Wall, all of whom were convicted of one or more of the twenty enumerated offenses before the effective date of the 90% policy, successfully moved to join the action as plaintiffs. The plaintiffs asserted claims under 42 U.S.C. § 1983, contending that the Board violated the Ex Post Facto and Due Process Clauses by continuing to apply a de facto 90% policy, even after the Board agreed not to apply the policy and to reconsider the TPMs for those individuals to whom the Board had impermissibly applied the 90% policy. Plaintiffs sought equitable relief in the "form of an injunction enjoining the retroactive enforcement by the Board of the 90 percent policy and an order directing the Board to reconsider the Plaintiffs for release on parole in accordance with the laws and guidelines in effect at the time of the commission of their offenses."

The Board moved for summary judgment, asserting that it removed references to the 90% policy from the files of those individuals to whom the Board had impermissibly applied the policy and reconsidered their TPMs without regard to the 90% policy.4 Shortly thereafter, the Board announced that it would no longer apply the 90% policy to anyone and would reconsider all cases affected by this change ("2005 Resolution").5 When ruling on the defendant's motion for summary judgment, the district court stated that in light of the 2005 Resolution, the Board had agreed to reconsider TPMs of Fisher, Heftler, Pennie, Porter, Walker, and Williams without regard to the 90% policy, thereby making their requests for injunctive relief moot.6

The district court concluded that the Board never applied the 90% policy to Frye, Harris, Hudson, Jackson, Veitch, and Wall because they either were not convicted of one or more of the twenty enumerated offenses or were sentenced before the 90% policy's effective date. The court directed those plaintiffs to provide supplemental briefing regarding their claims.

The remaining plaintiffs conceded that the Board never applied the 90% policy to them but contended that the Board applied a de facto 90% policy that resulted in their receiving sentences in excess of what they would have received had the Board faithfully applied the parole guidelines and statutes in effect at the time they committed their offenses. The court denied Wall's claims as moot because she had been released. The court also denied Veitch's claim because the Board agreed to rehear his request for parole.7 As for Frye, Harris, Hudson, and Jackson, the court held that their claims were time-barred because they filed their claims after the two-year statute of limitations had run.

The plaintiffs appealed. After a full review of the record and the benefit of oral argument, we affirm.

II. Issues Raised and Standards of Review

The appellants raise four issues on appeal.8 First, the appellants argue that the district court erred in granting summary judgment for the Board on their ex post facto claim. Second, the appellants argue that the district court erred in granting summary judgment for the Board on their due process claim. Third, the appellants argue that the district court erred in dismissing some claims as untimely. Finally, the appellants argue that the district court erred in denying their motion for in camera review of documents they requested through discovery.

We review the district court's grant of summary judgment de novo, applying the same standard the district court applied. Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1304 (11th Cir.2002). The court must grant summary judgment if the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court should view the evidence and any inferences that may be drawn in the light most favorable to the non-moving party. Lubetsky, 296 F.3d at 1304. The party seeking summary judgment must first identify grounds...

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